Manipur High Court
Thokchom Lokeshwar Singh vs Thangjam Mohendro Singh on 20 August, 2020
Equivalent citations: AIRONLINE 2020 MPR 73
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
Page |1
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
MC(E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
Thokchom Lokeshwar Singh, aged about 52 years, S/o
(Late) Thokchom Navakumar Singh of Sagolmang
Mamang Leikai, P.O. Pangei, P.S. Sagolmang, Imphal
East District, Manipur-795114.
..... Applicant.
-Versus-
Thangjam Mohendro Singh, aged about 61 years, S/o
(Late) Thangjam Maipak Singh of Haraorou Village, P.O.
Pangei Yangdong, P.S. Sagolmang, Imphal East District,
Manipur-795114.
......Respondent
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Applicant :: Mr. N. Ibotombi, Sr. Advocate
Mr. A. Rommel, Advocate,
Mr. H. Prabir Kumar, Advocate.
For the Respondent :: Mr. N. Mahendra, Advocate.
Date Hearing :: 23.01.2020
Date of Judgment &
Order :: 20.08.2020
JUDGMENT AND ORDER
(CAV)
This petition has been filed by the petitioner under
Order XV, Rules 1 and 3 CPC praying to dismiss Election Petition
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
Page |2
No.3 of 2017, as there is no triable cause of action against the
petitioner.
2. The petitioner herein is the respondent in Elec.
P.No.3 of 2017. The reliefs sought for in Elec. P.No.3 of 2017
reads thus:
(i) To declare that the election of the returned
candidate, namely, Thokchom Lokeshwar
Singh to fill the seat in Manipur Legislative
Assembly from 1-Khundrakpam Assembly
Constituency in the Eleventh Manipur State
Legislative Assembly Election, 2017 is void.
(ii) To disbar/debar the respondent from contesting
a future election for a period of six years.
(iii) To punish the respondent under Section 125A
of the Representation of the People Act, 1951.
(iv) To award the cost of litigation.
(v) And pass such other or further order or orders
as the Court deems fit necessary.
3. The petitioner has filed M.C. (EP) No.13 of 2019
mainly on the ground that the petitioner has falsely deposed at
Para 10 of the Affidavit dated 13.02.2017 filed before the
Returning Officer that his educational qualification is Master of Arts
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
Page |3
in History, Manipur University, 2003 though there is no such
person by name "Thokchom Lokeswar Singh" who obtained
degree of Master of Arts in History, Manipur University, 2003.
According to the respondent/election petitioner, the petitioner has
concealed his real identity by furnishing false information as to his
surname and as such the nomination of the petitioner has been
improperly accepted by the Returning Officer.
4. It is the say of the respondent/election petitioner that
the petitioner by concealing his true identity and by assuming the
false name of Thokchom Lokeswar Singh had given statements
time and again in the affidavits of nominations as INC candidate
in the 9th, 10th and 11th elections to Manipur State Legislative
Assembly in the year 2007, 2012 and 2017 from 1-Khundrakpam
Assembly Constituency, Manipur with an intent to be elected in the
elections. In all the affidavits filed by the petitioner, he had
furnished false information intentionally in order to wrongly
harness the political legacy of late Thokchom Navakumar Singh,
Ex. MLA of 1-Khundrakpam by duping the electors; Therefore,
such an act of furnishing false statements/false affidavits amount
to violation of the provisions of Section 33 of the Representation
of People Act, 1951 and as such, the nomination papers filed for
and on behalf of the petitioner stand invalid and void. Further, by
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
Page |4
allowing and accepting the defective nomination paper of the
petitioner, the Returning Officer of 1-Khundrakpam Assembly
Constituency has failed to perform his official duty judiciously and
in accordance with law. Thus, the respondent/election petitioner
has Filed Elec. P.No.3 of 2017 by mentioning the cause of action
dated 13.02.2017 when the nomination of the petitioner was
improperly accepted and on 11.03.2017 when the result of the
election was declared by the Returning Officer.
5. The petitioner has filed objection to the election
petition contending that he was born to O.Khoidumba Singh and
O.Ibemchoubi Devi. During the life time of the petitioner's natural
parents, he was given in adoption to the adoptive parents viz.,
Thokchom Navakumar Singh and R.K.Lakhisana Devi after
complying with all requisite customary ceremony prevalent in the
State of Manipur at the relevant time. It is stated that the petitioner
was brought up on the family of adoptive parents after severing all
ties with his natural parents. Prior to his adoption, the petitioner
was studying in school with the name Oinam Lokeswar Singh and
his adoptive parents continued to use the aforesaid name i.e.,
Oinam Lokeshwar Singh only in the academic records of the
petitioner and he used this name only in his academic records till
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
Page |5
completion of his education in 2003 i.e., M.A. History from Manipur
University.
6. It is stated that the petitioner started using the name
Thokchom Lokeswar Singh instead of Oinam Lokeshwar Singh
and he discontinued using the name Oinam Lokeshwar Singh
except in his academic records and the petitioner also recorded
his name as Thokchom Lokeshwar Singh in the electoral roll of
Khundrakpam Assembly Constituency and he was familiar with
and known in the locality of Khundrakpam Assembly Constituency
by his name Thokchom Lokeshwar Singh. The say of the petitioner
is that in fact and in truth, Thokchom Lokeshwaar Singh and
Oinam Lokeshwar Singh is one and the same person.
7. It is further stated that pending Elec. P.No.3 of 2017,
the petitioner herein has filed M.C. (EP) No.28 of 2017 under
Order VII, Rule 11 CPC read with Section 86 and Section
100(1)(d)(i) of the Representation of People Act, 1951 to dismiss
the election petition on the ground that there is no triable issue left
and the issues raised by the election petitioner has already been
decided by the Election Commission of India as well as by the
Criminal Court including this Court on an earlier occasion. By an
order dated 19.6.2018, the said petition was dismissed by this
Court, however, liberty was granted to the petitioner to move this
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
Page |6
Court at the appropriate stage to pursue his claim for
dismissal/closure of the election petition in accordance with law.
Now the petitioner has come with the present petition seeking to
dismiss the election petition on the ground that there is no triable
cause of action against the petitioner.
8. It is to be noted that on 22.8.2019, this Court framed
the following issues in the main election petition:
(i) Whether Oinam Lokeshwar Singh and
Thokchom Lokeshwar Singh is one and the
same person or not and whether the respondent
passed Master of Arts in History from the
Manipur University in the year 2003 or not have
already been tried and decided by the
Competent Authority/Courts i.e., Election
Commission of India vide letter dated
20.02.2015. Judgment and order dated
20.8.2015 passed by the Ld. Sessions Judge,
Imphal East, Manipur in Cril. Revision Case
No.4 of 2015 and order dated 27.4.2016 passed
by the Hon'ble High Court of Manipur in Cril.
Petition No.6 of 2016 in favour of the
Respondent or not?
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
Page |7
(ii) Whether, the respondent field an affidavit dated
13.02.2017 (Form 26) having substantial
defects in as much as the respondent either
falsely deposed at para no.10 of the said
affidavit dated 13. 02.2017 that his highest
educational qualification is 'Master of Arts in
History, Manipur University, 2003' since there is
no such a person by the name Thokchom
Lokeshwar Singh' who obtained the degree of
'Master of Arts in History, Manipur University,
2003' or has concealed the real identity of the
respondent by furnishing false information as to
his surname of being 'Thokchom' and
parentage of being the 'Son of Late Thokchom
Navakumar Singh' or not?
(iii) Whether, by allowing and accepting the
defective nomination paper of the respondent,
the RC. of the 1-Khundrakpam A/C has failed to
perform his official duty judiciously and in
accordance with the provisions of the RP Act,
1951 or not?
(iv) Whether, the respondent gave false information
which he knows or has reason to believe to be
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
Page |8
false or conceals information in his nomination
paper delivered under sub-section 1 of section
33 and/or in his said affidavit with intent to be
elected in the said election or not?
(v) Whether, nomination paper of the respondent
was improperly accepted by the Returning
Officer,1-Khundrakpam Assembly Constituency
in violation of Section 36 of the RP Act, 1951,
thus, materially affecting the result of the
election in which the candidate, namely,
Thokchom Lokeshwar Singh (the respondent),
was declared to be the returned candidate to fill
the seat in the Manipur Legislative Assembly
from 1-Khundrakpam Assembly Constituency in
the Eleventh Manipur State Legislative
Assembly Election, 2017, thus attracting the
provisions as provided U/s 100(1)(d)(i) of
Part.,VI Chapter III and 5 125A of the
Representation of the People Act, 1951 or not?
(vi) Whether, the petitioner has cause of action to
file the present petition or not?
(vii) Whether, the petitioner is entitled to the relief(s)
claimed for or not?
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
Page |9
9. On 27.9.2019, the election petitioner filed his affidavit
in chief and on the same date, the petitioner has filed the instant
petition M.C (EP) No.13 of 2019 seeking to dismiss the election
petition as there is no triable cause of action against the petitioner.
10. The learned counsel for the petitioner submitted that
the issue raised by the respondent/election petitioner in the
election petition was a subject matter in the earlier election held in
the year 2012, where one N.Shinghajit Singh has filed complaint
before the Election Commission of India alleging that the petitioner
has Filed false Form No.26 in respect of his educational
qualification by stating that he had passed M.A. History. He would
submit that the allegation against the petitioner was no person by
name Thokchom Lokeshwar Singh passed M.A. History from
Manipur University in 2003 and it was therefore, alleged in the
complaint that Thokchom Lokeshwar was guilty of offence under
Section 177 of IPC and Section 125-A of the Representation of
People Act, 1951 for submitting wrong information to the authority
concerned.
11. The learned counsel further submitted that pursuant
to the direction of the Election Commission of India, the Sub
Divisional Officer, Sawombung held an enquiry and submitted a
report to the effect that Thokchom Lokeshwar Singh and O.
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 10
Lokeshwar Singh was one and the same person and no wrong
information was furnished by him.
12. The learned counsel would further submit that having
not satisfied with the report of the Sub Divisional Officer,
N.Shinghajit Singh filed a Criminal Complaint Case No.34 of 2015
before the Learned Chief Judicial Magistrate, Imphal East alleging
that the petitioner has filed false affidavit in respect of his passing
M.A. History. The Learned Chief Judicial Magistrate, vide order
dated 30.3.2015, took cognizance against the petitioner and
issued notice. He would submit that challenging the order of the
Learned Chief Judicial Magistrate, the petitioner has preferred
Criminal Revision Case No.4 of 2015 before the Sessions Judge,
Imphal East and by an order dated 20.8.2015, the said revision
was allowed thereby setting aside the order of the Learned Chief
Judicial Magistrate. Aggrieved by the order of the Learned
Sessions Judge, the respondent/election petitioner has Filed
Criminal Petition No.6 of 2016 before this Court and by an order
dated 27.4.2016, the said petition was dismissed.
13. Referring to the earlier orders of the Sessions Court
and this Court, the learned counsel for the petitioner submitted that
Thokchom Lokeshwar Singh and O. Lokeshwar Singh are one and
the same person and that the petitioner had neither furnished any
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 11
wrong information in respect of his educational qualification nor
had he furnished any wrong information in respect of his name.
Therefore, the issue raised in the election petition has already
been dealt with by the Court and the same attained finality. Hence,
the respondent/election petitioner has no right to maintain the
election petition on the said ground of the alleged false affidavit.
14. The learned counsel for the petitioner next submitted
that earlier when the petitioner has filed the petition under Order
VII, Rule 11 CPC to dismiss the election petition, this Court
dismissed the said petition, however, this Court granted liberty to
the petitioner to pursue his claim for dismissal of the election
petition at the appropriate stage and that the petitioner has now
approached this Court by filing the present petition seeking to
dismiss the election petition on the ground that there is no triable
cause of action against the petitioner and thus, prayed for
dismissal of the election petition by allowing M.C. (EP) No.13 of
2019.
15. On the other hand, the learned counsel for the
respondent/election petitioner contended that the election petition
is at the stage of recording of evidence and at this stage the instant
petition filed by the petitioner is not maintainable. Since the issue
of cause of action has already been decided by this Court in M.C.
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 12
(EP) No.28 of 2017, the present application is hit by the principle
of res judicata or on the principle of estoppel.
16. The learned counsel for the respondent/election
petitioner further submitted that the issue raised in the election
petition is whether there is improper acceptance of the nomination
paper of the petitioner by the Returning Officer or not despite the
presence of substantial defects in the Affidavit dated 13.02.2017
(Form 26) inasmuch as the petitioner either falsely deposed at
para no.10 of the said Affidavit dated 13.02.2017 that his highest
educational qualification is Master of Arts in History, Manipur
University, 2003' as there is no such person by name Thokchom
Lokeshwar Singh, who obtained the Degree of Master of Arts in
History or has concealed the real identity of the petitioner by
furnishing false information as to his surname of being Thokchom
and parentage of being son of late Thokchom Navakumar Singh.
17. The learned counsel added that since there was no
any earlier election petition decided involving directly and
substantially the issue in question, the present petition seeking to
dismiss the election petition deserves to be dismissed and that the
election petition needs to be tried by adducing oral and
documentary evidence.
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 13
18. This Court considered the submissions made by the
learned counsel appearing on either side and also perused the
materials available on record.
19. At the outset, it is to be pointed out that the
respondent/election petitioner challenged the election of the
petitioner mainly on the ground that he had concealed his true
identity and has filed a false affidavit of nomination (Form 26) with
an intent to be elected in the election from 1-Khundrakpam
Assembly Constituency. Therefore, such an act of furnishing false
affidavit amounts to violation of the provisions of Representation
of People Act, 1951. Further, by allowing and accepting the
defective nomination of the petitioner, the Returning Officer has
failed to perform his official duty in accordance with law. The
specific averment of the respondent/election petitioner is that by
concealing his true identity and by assuming the false name of
Thokchom Lokeshwar Singh, son of Thokchom Navakumar Singh,
the petitioner had given statements time and again in the affidavits
of nominations as INC candidate in the 9th, 10th and 11th elections
to Manipur State Legislative Assembly in the year 2007, 2012 and
2017 respectively from 1-Khundrakpam Assembly Constituency.
20. Earlier, one N.Shinghajit Singh, Ex-candidate from 1-
Khundrakpam Assembly Constituency has filed a complaint
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 14
before the Election Commission of India against the petitioner
alleging that the petitioner has filed false Affidavit in the 10th
Manipur Legislative Assembly elections held in the year 2012 with
respect to his education qualification by stating that he had passed
M.A. History from Manipur University in 2003. The allegation of
N.Shinghajit Singh is that no person by name Thokchom
Lokeshwar Singh passed M.A. History and thus, prayed for action
against Thokchom Lokeshwar Singh under Section 177 IPC and
Section 125-A of Representation of People Act, 1951 for
submitting wrong information.
21. The complaint of N.Shinghajit Singh was forwarded
by the Election Commission of India to the Returning Officer for
action in accordance with the letter dated 2.6.2004 of the Election
Commission of India. The Returning Officer viz., the Sub-
Divisional Officer, Sawombung called for explanation from the
petitioner and after examining the materials produced before him,
observed as under:
"It is observed that Shri Thokchom Lokeshwar Singh has
been using his new name while filing nomination papers
whenever he contested for Assembly Elections (2007 &
2012) as his oId/original name has become obsolete.
Hence, I am of the opinion that Shri Thokchom Lokeshwar
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 15
Singh had not furnishing any wrong information in respect
of his educational qualification as the person with the
name "O. Lokeshwar Singh" appearing at serial number
20 with Roll No.214024 on the Result Sheet of MA
(History) Final Examination 2003 of Manipur University is
none other than Shri Thokchom Lokeshwar Singh The
confusion seems to arise from the fact that his oId/original
name has become obsolete in his public life as he is
known far and wide by his new name at present. It may,
therefore, be concluded that the contention that Shri
Thokchom Lokeshwar Singh had furnished wrong
information as regards to his educational qualification
does not hold good and hence, no legal proceedings may
be initiated to prosecute Shri Thokchom Lokesh war Singh
as per the provisions of Section 125A of the
Representation of People Act, 1951 and Section 177 of
IPC (read with Section 200 Cr.P.C.) in this regards."
22. Assailing the report of the Returning Officer, the
respondent/election petitioner again approached the Election
Commission of India and by a letter dated 20.2.2015, the Election
Commission of India informed the respondent/election petitioner
that if not satisfied with the report of the Returning Officer, it would
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 16
be open to him to move the appropriate Court of law under Section
125-A of the Representation of People Act, 1951.
23. Pursuant to the direction of the Election Commission
of India, the respondent/election petitioner has filed Criminal
Complaint Case No. 35 of 2015 before the Learned Chief Judicial
Magistrate, Imphal East under Section 200 of Cr. P. C. praying to
take cognizance against the petitioner. By an order dated
30.03.2015, the Learned Chief Judicial Magistrate opined that
sufficient grounds have been made out for taking cognizance
against the petitioner and accordingly, issued summons for his
appearance on 16.4.2015.
24. Assailing the order of the Learned Chief Judicial
Magistrate dated 30.03.2015, the petitioner has filed Criminal
Revision Case No.4 of 2015 before the Learned Sessions Judge,
Imphal East. On notice, the respondent/election petitioner entered
appearance and questioned the very maintainability of the revision
under Section 397 Cr.P.C. The Learned Sessions Judge, after
discussing with the provisions and also case laws, held that the
revision is maintainable. Coming to the factual aspects of the
matter in respect of furnishing of wrong information about the
educational qualification in the Affidavit, the Learned Sessions
Judge held that Thokchom Lokeshwar Singh and O. Lokeshwar
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 17
Singh are the same person and therefore, there is no occasion of
furnishing wrong information and no action lies against the
petitioner for committing the offence under Section 125-A of RP
Act and Section 177 IPC. The operative portion of the order reads
thus:
"31. From the above referred decision, it is clear
that a revisional court can interfere with a criminal
proceeding if the same has been initiated in
complete disregard of the mandatory provisions
of the law and decisions of superior courts. Since
the impugned order and proceeding have been
initiated in complete disregard of the law of
limitation, jurisdiction and without examining the
necessary ingredients of the offences under
Section 177 IPC and Section 125-A RP Act, the
same are held to be without jurisdiction.
Accordingly, the impugned order dated
30.03.2015 passed by the Id. Chief Judicial
Magistrate, Imphal East in Cril. (C) Case No.35 of
2015 and the proceeding itself are set aside. The
revision petition is allowed and disposed of in
terms of the above findings. No costs."
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 18
25. Aggrieved by the order of the Learned Sessions
Judge, the respondent/election petitioner preferred Criminal
Petition No.6 of 2016 before this Court. By an order dated
27.4.2016, this Court dismissed the petition. As against the order
of this Court, N.Shinghajit Singh has not preferred any appeal and
the said order attained finality.
26. It is not in dispute that the petitioner was adopted by
one Thokchom Navakumar Singh and after his adoption by his
adoptive father, the petitioner changed his surname as Thokchom
and as such these two names viz., Thokchom Lokeshwar Singh
and O. Lokeshwar Singh are one and the same person. Further,
from the earlier proceedings, it is clear that the petitioner had not
furnished any wrong information in respect of his educational
qualification as the person with the name O. Lokeshwar Singh is
none other than Thokchom Lokeshwar Singh.
27. The case of .the respondent/election petitioner is that
the petitioner has concealed his true identity and also filed false
Form 26 by stating his educational qualification which he never
obtained. As stated supra, when in the earlier proceedings, the
same issue was raised by N.Shinghajit Singh, the authority and
the Courts are of the view that Thokchom Lokeshwar Singh and
O. Lokeshwar Singh are one and the same person and the name
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 19
of O. Lokeshwar Singh mentioned in Serial No.20 of the MA.
History examination result is none other than the petitioner
Thokchom Lokeshwar Singh, which fact was clearly supported by
the report/findings of the Returning Officer, Sawombung dated
22.10.2013.
28. It is to be noted that earlier the petitioner has filed
M.C. (EP) No.28 of 2017 in E.P.No.3 of 2017 under Order VII, Rule
11 CPC praying to dismiss the election petition on the ground that
there is no triable issue left and the issues raised by the
respondent/election petitioner had already been decided by the
Election Commission of India as well as by the Courts, including
the High Court. The plea of the respondent/election petitioner is
that the nomination of the petitioner had been improperly accepted
by the Returning Officer. It is also alleged that in the Affidavit Filed
by the petitioner, it has been wrongly stated that he had completed
Master of Arts in History. Thus, falsification of the educational
qualification of the petitioner and his real identity is the only ground
raised in the election petition.
29. The learned counsel for the petitioner submitted that
the petitioner had obtained his Master of Arts in History from
Manipur University in 2003 and his real name after his adoption by
Thokchom Navakumar Singh is Thokchom Lokeshwar Singh. He
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 20
would submit that since the aforesaid facts have been given
judicial recognition and attained finality, the allegation raised by
the respondent/election petitioner in his election petition that the
petitioner had given wrong information in respect of his
educational qualification and also concealed his real identity are
without any substance. There is some force in the argument of the
learned counsel for the petitioner. As rightly argued by the learned
counsel for the petitioner, when the identity of the petitioner and
his qualification were judicially recognised by this Court in the
earlier proceedings and had attained finality, the judicial discipline
is to follow the said order.
30. In the instant petition, the petitioner seeks to dismiss
the election petition as "there is no triable cause of action against
the petitioner for filing the election petition. The first cause of action
for filing the election petition, as could be seen from the petition
was arose on 16.2.2017 when the nomination of the petitioner was
improperly accepted and the second was arose on 11.3.2017
when the result was declared by the Returning Officer. On a
perusal of a copy of the Affidavit (Form 26), this Court finds that
the Form 26 is dated 13.02.2017, wherein the educational
qualification of the petitioner has been mentioned as Master of
Arts in History, Manipur University, 2003. When M.A. History
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 21
qualification has been mentioned by the petitioner in the earlier
nomination affidavits (2007 and 2012), the same was accepted by
the Returning Officer concerned and elected two times to Manipur
Assembly. During 2012 when the identity and the qualification of
the petitioner was disputed by one Namoijam Singhajit Singh, the
same was negatived by the Election Commission of India and the
Courts. When the petitioner submitted Form 26 in the election in
question, the Returning Officer concerned has not questioned
Form-26 dated 13.02.2017 submitted by the petitioner.
31. Section 146(3) and (4) of the Representation of
People Act provide that the Election Commission shall be deemed
to be a Civil Court and procedure shall be deemed to be judicial
proceeding. Since the issue relating to educational qualification of
the petitioner and passing of M.A. History in 2003 has attained
finality having been decided by the competent Court of law, the
respondent/election petitioner has no right to reopen the same, as
no appeal has been preferred against the decision of the Election
Commission as well as the decision rendered by this Court.
32. The main challenge in the election petition is wrong
information in respect of educational qualification given by the
petitioner in Form 26 dated 13.02.2017. Since the educational
qualification of the petitioner as M.A. History has been accepted
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 22
by the authority concerned in the earlier nomination and had
attained finality in the judicial proceedings, the
respondent/election petitioner has no right to question the very
same educational qualification of the petitioner and his identity in
the present election petition by mentioning the cause of action
dated 16.02.2017 when nomination papers of the petitioner was
accepted by the Returning Officer. Since the Returning Officer
accepted Form 26 dated 13.02.2017, the respondent/election
petitioner has no right to quote same as cause of action for Filing
the election petition. When the election petition/plaint has no
cause of action, the opposite party has right to file an application
to dismiss or reject the election petition/plaint.
33. The learned counsel for the respondent/election
petitioner submits that when similar petition being M.C. (EP) No.28
of 2017 has been disposed of by this Court vide order dated
19.6.2018, the present application being M.C. (EP) No.13 of 2019
is not maintainable and the same is hit by the principle of res
judicata under Section 11 of CPC.
34. It is true that M.C. (EP) No.28 of 2017 has been
dismissed of by this Court on 19.6.2018. However, while
dismissing the petition, this Court observed that if at an
appropriate stage, it can be established that no triable issue
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 23
remains to be adjudicated by this Court as contended by the
petitioner, based on the pleadings and materials disclosed with
supporting evidences in the written statement, the petitioner may
revive the claim for dismissal of the election petition.
35. It is apposite to mention that the facts that gives rise
to an enforceable claim constitutes the cause of action. If the
respondent/election petitioner alleges that the petitioner had given
wrong information about his educational qualification as well as his
real identity by giving material facts and details, it can be said that
the election petition discloses cause of action. When the fact
remains that the petitioner has not given any wrong information in
Form 26, it cannot be said that the election petition discloses
cause of action. In this regard, it is worthwhile to extract the
operative portion of the order in M.C. (EP) No.28 of 2017, which
reads as under:
"32. In view of the above settled law, the election
petition cannot be dismissed at this stage by
invoking Order 7 Rule 11 CPC by referring to the
pleadings in the written statement filed by the
respondent. At this stage this Court has to merely
examine the pleadings in the election petition and
not to the written statement and this Court finds
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 24
that sufficient material facts have pleaded in the
election petition to constitute cause of action. It is
an entirely different matter that in the light of the
written statement filed by the respondent, the
respondent may ultimately, succeed, but that
issue cannot be considered at this stage, for the
purpose of invoking Order 7 Rule 11 of the CPC
for dismissal on the ground that the petition does
not disclose cause of action.
33. For the reasons discussed above,
as it cannot be said at this stage that the election
petition does not disclose any cause of action,
this Court does not find merit in the application
and accordingly, the present application is
dismissed.
34. However, before parting, this Court
would like to make the observation that at if at an
appropriate stage, it can be established that no
triable issue remains to be adjudicated by this
Court, as contended by the applicant, respondent
in the election petition, based on the pleadings
and materials disclosed with supporting
evidences in the written statement, the
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 25
respondent in the election petition may revive this
claim for dismissaI/closure of the election petition
at such appropriate stage in accordance with the
relevant provisions of law. It may be noted that in
some cases, there may be situations, where
because of certain position obtaining or
subsequent developments taking place during
the pendency of a suit, the cause of action may
not survive anyone. In such situation, there may
by nothing left to be decided by the Court, or the
judicial exercise may be reduced to purely an
academic exercise. In such an eventuality, the
suit may be liable to be closed as infructuous or
dismissed. Accordingly, it is clarified that in spite
of dismissal of this application, the respondent in
the election petition may again move this Court,
at the appropriate stage, to pursue his claim for
dismissaI/closure of the election petition, in
accordance with law. After all, the jurisdiction of
the Court can be invoked to decide and determine
live issues only and not non-existent issues and
this Court is not expected to undertake a futile
judicial exercise."
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017
P a g e | 26
36. Thus, pursuant to the liberty being given by this
Court, the present petition being M.C. (EP) No.13 of 2019 has
been filed by the petitioner to dismiss the election petition and
therefore, the petition is not hit by the provisions of Section 11 of
CPC.
37. Now the petitioner has filed the instant petition under
Order XV, Rules 1 and 3 CPC to dismiss the election petition as
there is no triable cause of action against the petitioner.
38. Order XV, Rules 1 and 3 CPC reads thus:
"Disposal of the suit at the first hearing
1. Parties not at issue
Where at the first hearing of a suit it appears that
the parties are not at issue on any question of law
or of fact, the Court may at once pronounce
judgment.
..................
3. Parties at issue (1) Where the parties are at issue on some question of law or of fact, and issues have been framed by the Court as herein before provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is M.C. (E.P.) No. 13 of 2019 Ref:- Election Petition No. 3 of 2017 P a g e | 27 required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and , if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit:
Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them objects.
(2) Where the finding is not sufficient for the decision, the Court shall postpone the further hearing of the suit, and shall fix a day for the production of such further evidence, or for such further argument as the case requires."
39. The learned counsel for the respondent/election petitioner submitted that since issues are framed, the petition under Order XV, Rule 1 CPC is not maintainable. Similarly, the M.C. (E.P.) No. 13 of 2019 Ref:- Election Petition No. 3 of 2017 P a g e | 28 |earned counsel submitted that Order XV, Rule 3 CPC is also not applicable in the case on hand.
40. Placing reliance upon the decision of the Hon'ble Supreme Court in the case of Kanwar Singh Saini v. High Court of Delhi, reported in (2012) 4 SCC 307, the learned counsel for the petitioner submitted that the instant petition under Order XV, Rules 1 and 3 is very well maintainable, as the First hearing of the suit can never be earlier than the date fixed for the preliminary examination of the parties and the settlement of issues. On the date of appearance of the defendant, the Court does not take up the case for hearing or apply its mind to the facts of the case and it is only after filing of the written statement and framing of issues, the hearing of the case commences. Therefore, the learned counsel contends that the hearing presupposes the existence of an occasion which enables the parties to be heard by the Court in respect of the cause and hearing therefore should be First in point of time after the issues have been framed.
41. In Kanwar Singh Saini (supra), the Hon'ble Supreme Court held:
"13. The date of "first hearing of a suit" under CPC is ordinarily understood to be the date on which the court proposes to apply its mind M.C. (E.P.) No. 13 of 2019 Ref:- Election Petition No. 3 of 2017 P a g e | 29 to the contentions raised by the parties in their respective pleadings and also to the documents filed by them for the purpose of framing the issues which are to be decided in the suit. Thus, the question of having the "first hearing of the suit" prior to determining the points in controversy between the parties i.e. framing of issues does not arise. The words "first day of hearing" do not mean the day for the return of the summons or the returnable date, but the day on which the court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence is taken. (Vide Ved Prakash Wadhwa v. Vishwa Mohan, (1981) 3 SCC. 667; Sham Lal v. Atme Nand Jain Sabha, (1987) 1 SCC 222; Siraj Ahmad Siddiqui v. Prem Nath Kapoor, (1993) 4 SCC 406 and Mangat Singh Trilochan Singh v. Satpal, (2003) 8 SCC 357."
42. In the election petition, this Court framed issues on 22.08.2019 and the petition being M.C. (EP) No.13 of 2019 to M.C. (E.P.) No. 13 of 2019 Ref:- Election Petition No. 3 of 2017 P a g e | 30 dismiss the election petition was filed on 27.09.2019. It also appears that the chief examination of the respondent/election petitioner by way of proof affidavit was filed on 27.09.2019. The Filing of proof affidavit does not preclude the petitioner from filing the instant petition to dismiss the election petition, as the petitioner is entitled to file such petition at the time either the issues are settled or evidence is taken. Since the Filing of the petition to dismiss the election petition and the filing of the proof affidavit of the election petitioner are on the same day, keeping in view the decision of the Hon'ble Supreme Court in the case of Kanwar Singh Saini, the instant petition to dismiss the election petition filed by the petitioner is very well maintainable under Order XV, Rules 1 and 3 CPC and the same is not hit by any provisions of law as alleged by the respondent/election petitioner.
43. It is to be mentioned that earlier the respondent/election petitioner tiled M.C. (EP) No.23 of 2017 seeking leave of this Court to file replication in reply to the written statement of the petitioner field in the election petition. By an order dated 5.7.2019, this Court dismissed the said petition. While dismissing the petition, this Court extracted certain portions of the replication, which are at the cost of repetition again extracted herein below:
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017 P a g e | 31 "2. ...... It is stated that no date of alleged adoption is mentioned in its written statement which fact, if stated, will have far reaching consequence in the allegations (defence put up) by the respondent in its written statement. The respondent has suppressed vital and material fact regarding the date of alleged adoption, if any, and has not come with clean hands in giving his written state.
3. ....... It is stated that respondent's true identity is Oinam Lokeshwar Singh, s/o Oinam Khoidumba Singh. Shri Thokchom Navakumar Singh (now deceased) had sons, older than the respondent in age, and daughter, namely, Thokchom Nevidita. Nevidita, being the daughter of Late Thokchom Navakumar Singh, he would not have given her hand to the respondent, the alleged adoptive son in marriage. The said Nevidita is the wife of the respondent. Now the respondent has to tell many lies in order to justify one lie, i.e., he is the adoptive son of Late Thokchom Navakumar Singh."
M.C. (E.P.) No. 13 of 2019
Ref:- Election Petition No. 3 of 2017 P a g e | 32
4. ....... It is stated that the respondent's true identify as Oinam Lokeshwar Singh s/o Oinam Khoidumba of Nongmaickhong is entered in the electoral roll of 1989 at Sl.No.230 (2) House no.41 of polling station no. & name 38/20 Arong Nongmaickhong of 38-Hiyanglam A/C, Thoubal District within 2-Outer Manipur Parliamentary S.C. Constituency. Again the respondent's true identity as Oinam Lokeshwar Singh s/o Oinam Khoidumba of Nongmaickhong is entered in the electoral roll of 1993 at Sl. No. 260 (7) House no.41 of polling station no. & name 38/20 Arong Nongmaikhong of 38-Hiyanglam A/C, Thoubal District within 2-Outer Manipur Parliamentary S.C. Constituency.
5. ...... It is stated and reiterated that the respondent deliberately concealed the fact that he is Oinam Lokeshwar Singh s/o Oinam Khoidumba of Nongmaikhong and he gave the wrong statement that he is Thokchom Lokeshwar Singh s/o Thockchom Navakumar Singh resident of Sagolmang Mamang Leikai." M.C. (E.P.) No. 13 of 2019 Ref:- Election Petition No. 3 of 2017 P a g e | 33
44. Since certain new facts were sought to be introduced by the respondent/election petitioner, this Court dismissed M.C.(EP) No.23 of 2017. The operative portion of the order reads thus:
"32. Order 8 Rule 9 CPC invests the Court with wide discretion to receive the reply statement. But the discretion cannot be exercised to cause serious prejudice to the defendants allowing the plaintiff to change the entire plea and complicating the issues involved. The exercise of discretion cannot be extended to the extent of allowing such applications introducing new plea. This is all the more so, in this case where the application is filed belatedly setting forth new plea.
33. As stated supra, the plea sought to be raised in the replication are new plea and any new plea and/or ground by way of replication that too in an Election Petition much after the expiry of 45 days, cannot be entertained. Further, permitting a new ground to be raised beyond the time prescribed in Section 81 of the Act would amounts to contravention of the provision and M.C. (E.P.) No. 13 of 2019 Ref:- Election Petition No. 3 of 2017 P a g e | 34 also beyond the ambit of Section 87 of the Representation of the People Act, 1951. The reason for leave to file the replication is not convincing and more over, the averments contained in the replication are new pleas and also it has been filed belatedly in contravention of the provisions of the Representation of the People Act, 1951.
34. For the foregoing discussions, I am of the view that the petition filed by the petitioner under Order 8, Rule 9 C.P.C. seeking leave of this Court to file replication deserves to be dismissed. Accordingly, M.C. (Election Petition) No.23 of 2017 is dismissed. No costs."
45. As against the order dated 5.7.2019 passed in M.C. (EP) No.23 of 2017, the respondent/election petitioner has not filed any appeal and the said order attained finality. Since the identity of the petitioner has been clearly stated in the earlier proceedings and also the petitioner has not given any false information in Form 26 qua his educational qualification, this Court is of the view that the petitioner is entitled to maintain the instant petition being M.C. (EP) No.13 of 2019. Further, M.C. (EP) No.13 M.C. (E.P.) No. 13 of 2019 Ref:- Election Petition No. 3 of 2017 P a g e | 35 of 2019 has been filed by the petitioner pursuant to the direction of this Court in M.C. (EP) No.28 of 2017, dated 19.6.2018. As stated supra, the main cause of action for filing the election petition is filing of Form 26 by the petitioner. When Form 26 filed by the petitioner has proved to be genuine and that there is no wrong information in it, the main cause of action for filing the election petition against the petitioner automatically goes. Since there is no triable cause of action against the petitioner, further proceedings in the election petition is wasting the precious time of the Court.
46. The Court can dispose of election petition and pronounce judgment under Order XV, Rule 1 CPC if the Court is satisfied that the parties are not at issue on any question of law and fact. Since there is no triable cause of action against the petitioner, this Court is of the view that there is no triable cause of action and/or issue exist in the election petition.
47. The expression cause of action has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above the M.C. (E.P.) No. 13 of 2019 Ref:- Election Petition No. 3 of 2017 P a g e | 36 expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in cause of action.
48. The expression cause of action has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. IN a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit.
49. It is reiterated that since there is no triable cause of action against the petitioner in maintaining the election petition by the respondent/election petitioner, there is no meaning to conduct trial of the election petition by adducing oral and documentary evidences. It is also reiterated that since Form 26 of the petitioner has been duly accepted by the Returning Officer and the Returning Officer concerned has not questioned the same and also declared the election of the petitioner as winning candidate, the respondent/election petitioner has no right to maintain the election petition by mentioning the cause of action dated M.C. (E.P.) No. 13 of 2019 Ref:- Election Petition No. 3 of 2017 P a g e | 37 13.02.2017, which is the main cause of action. Except the alleged wrong information in Form 26, nothing has been raised as a ground to declare the election of the petitioner as void. Since this Court finds that the information, specifically the qualification of the petitioner mentioned in Form 26 dated 13.02.2017 is correct one and also the identity of the petitioner has been established, continuance of further proceedings in the election petition is nothing but wasting the judicial time. As there is no cause of action more particularly triable cause of action exist against the petitioner, the election petition deserves to be dismissed.
50. In the result, M.C. (EP) No. 13 of 2019 is allowed and the Election Petition No 3 of 2017 stands dismissed, as there is no triable cause of action against the petitioner/Respondent. No costs.
JUDGE FR/NFR Sushil Digitally WAIKH signed WAIKHOM by OM TONEN MEITEI TONEN Date:
2020.08.20 MEITEI 13:08:42 +05'30' M.C. (E.P.) No. 13 of 2019 Ref:- Election Petition No. 3 of 2017